England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th December 2002

Mr Justice Newman:

1. The claimant is serving a mandatory life sentence imposed in 1976. He has been released on licence three times and was last recalled to prison in October 1999.
2. The Secretary of State referred his case to the Parole Board ("the Board") for review and to determine whether he should be released for the fourth time. The Board decided not to recommend his release but did recommend transfer to open prison conditions where,

"……. A firm detailed release plan should be drawn up prior to his next review which should begin nine months after his transfer to open conditions."

3. The Secretary of State considered the Board's decision and

"……..accepted the recommendation for transfer to open conditions" but considered "……for the reasons given by the Parole Board, a period of at least two years in open conditions is needed for you to be fully tested, assessed and prepared for release." (Decision dated 17^th January 2002).

He added:

"The process leading to the next review of your case by the Parole Board will begin eighteen months after your arrival at your new location in accordance with the revised review procedures for lifers announced by the Home Secretary on the 9^th July 1998"

4. The procedure for reviews for lifers announced on the 9^th July 1998 related to mandatory and discretionary lifers. In laying down and implementing such reviews for mandatory lifers the Home Secretary has regarded himself as acting so as to give effect to Section 29 of the Crime (Sentences) Act, 1997. The announcement included the following:

"In future, the first Parole Board review for mandatory and discretionary life sentenced prisoners will be brought forward by six months to start three and a half years before the tariff expiry, but normally only where the prisoner has been in Category C prison conditions for twelve months at that point. Cases falling just outside the 12 month criterion and cases where exceptional circumstances exist will be considered for early review on their merits. In addition, reviews for all mandatory life sentenced prisoners who are in open conditions will commence eighteen months after arrival rather than two years as is now the practice. I am satisfied that this will still allow ample time (at least two years) in open conditions for the prisoners to be fully tested, assessed and prepared for release. This change will bring the timetable for review of mandatory life sentence prisoners into line with that for discretionary cases in which there is a statutory entitlement to a further review on the second anniversary of the conclusion of the previous one. "

The reference to the statutory entitlement for discretionary lifers is, of course, a reference to Section 28 (7) of the Crime (Sentences) Act 1997.

5. Two principal lines of argument have been advanced in order to challenge the decision dated the 17^th January 2002. First, it was submitted the Secretary of State applied the wrong policy because the claimant, having been released on licence on three occasions, should not have been treated as though he was a lifer preparing for his first release on licence. Secondly, it was submitted that since the power to set the timings of the reviews of mandatory lifers comprises, in reality, a question of the timing of release, the Secretary of State's discretion is reduced to a requirement to accept the Board's recommendation. Further, it being subject to the requirement that the intervals are reasonable, in setting eighteen months he acted unreasonably. This second line of argument, involving cumulative and alternative submissions, raises issues under Article 5(4) and Article 6 of the European Convention on Human Rights (ECHR).
6. The policy challenge did not involve a challenge to the policy as announced but to its application to the claimant. Section 29 of the 1997 Act stipulates for the respective roles of the Secretary of State and the Board in connection with release of mandatory lifers. The section confers the power to release on the Secretary of State and confers a power on the Board to make a recommendation when the Secretary of State has referred a case to the Board. Section 32(6) of the Criminal Justice Act 1991 confers a power on the Secretary of State to

"give to the Board directions as to the matters to be taken into account by it in discharging any functions under this part; and in giving any such directions the Secretary of State shall in particular have regard to –

(a) the need to protect the public from serious harm from offenders; and

(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation."

Directions have been made pursuant to that section and the directions in their material part set out the factors to be considered by the Board as follows:

"1. The Home Secretary takes the final decision on the release of mandatory life sentenced prisoners (lifers) and that decision might be taken on ground that go beyond the risk posed by the prisoner. The Home Secretary is also concerned with the wider political implications, including the effect on public confidence in the life sentence system which release may have, that is how the public would be likely to respond to the lifer being released at that juncture.

2. The Parole Board's responsibilities in the release consideration are whether, having regard to the degree of risk involved of the lifer committing further imprisonable offences after release, it remains necessary for the protection of the public for the lifer to be confined

3. Each case should be considered on its individual merits."

It follows that neither Parliament nor the Secretary of State has charged the Board with the responsibility to set the interval between reviews, but it has been the practice of the Board to see it as within its function to make a recommendation in that regard. The Secretary of State has, no doubt, found the practice helpful.

7. The claimant's argument depends upon the proper interpretation of the decision of the 17^th January 2002. There is an obvious coincidence between the decision and the announced policy arising from the requirement that the claimant be detained for two years in open prison conditions to be fully tested, assessed and prepared for release. But the coincidence is not in itself sufficient for the Court to conclude that the Secretary of State was driven to his decision because he applied the policy, as opposed to exercising his own judgment in connection with the findings the Board had made in the claimant's particular case. In my judgment the terms of the decision are sufficiently clear and enable a distinction to be drawn between the reasons for the decision and what was to follow in consequence of the decision. The Secretary of State makes it plain that he accepted the reasons given by the Board and concluded that two years in open prison conditions were necessary. Having reached that conclusion I can see no reason why he was not entitled to state that the future course would follow his announcement made on the 9^th July 1998. |It having been decided the claimant should not be released, some basis or procedure for the future consideration of his release had to be set and in this instance the policy, as announced, fitted the requirement.
8. The argument proceeded by close reference to the case of Stafford, in particular in the Court of Appeal and in the European Court of Human Rights Stafford v United Kingdom (2002) 35 EHRR 1121 Stafford, like the claimant, had been released on licence but Stafford remained at large leading a lawful life, for some ten years before he was recalled to prison. The Board recommended his release on licence but the Secretary of State did notccept the recommendation. He concluded that a further period of two years in open prison conditions was necessary. A challenge to his decision on grounds of irrationality failed before the Judge and in the Court of Appeal, but Lord Bingham, Lord Chief Justice, in a passage relied upon by the claimant, did state as follows:

"While a powerful case can be made for testing in open conditions a mandatory life sentence prisoner who has been institutionalised by long years of incarceration in closed conditions, such a case loses much of its force in the case of a man who has, since serving the punitive term of his life sentence, has demonstrated an independent and apparently lawful life by doing so for a number of years. The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law. I hope that the Secretary of State may, even now, think it right to give further consideration to this case."

The need identified by the Board and confirmed by the Secretary of State, for the claimant to be tested in open conditions has not been challenged. In my judgment the essential facts giving rise to Lord Bingham's observation are not present in the claimant's case. Each of his recalls to prison were generated by allegations of serious misconduct and repeated failures to comply with the licence requirements. Where a mandatory lifer has been released on licence on a number of occasions and on each occasion has demonstrated great difficulty in complying with the conditions of his release it is inevitable that consideration should be given to whether he requires a further period of time of testing and assessment in open conditions. The allegation that the Secretary of State applied the wrong policy or applied policy in a blanket manner without reference to the facts of the claimant's case fails.

The ECHR

9. In the absence of a determination by the Board that he should be released the claimant's argument by reference to the European Court of Human Rights decision in Stafford concentrated upon the impact of Article 5(4) of the Convention, which provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a Court and his release ordered if the detention is not lawful."

Mr Kovats for the Secretary of State accepted the effect of the decision in Stafford. The Court stated:

"After the expiry of the tariff, continued detention depends on elements of dangerousness and risk associated with the objectives of the original sentence of murder. These elements may change with the course of time, and thus new issues of lawfulness arise requiring determination by a body satisfying the requirements of Article 5(4). It can no longer maintained that the original trial and appeal proceedings satisfied once and for all, issues of compatibility of subsequent detention of mandatory life prisoners with the provisions of Article 5(1) of the Convention."

10. Since the Board failed to recommend the claimant's release no basis can be made out for concluding that his continued detention was unlawful in the period the Board recommended he should be detained. The issue is whether his continued detention after the passage of fifteen months, namely the expiry of nine months in closed conditions and an estimated further period of six months which will be required for the review to take place, will be unlawful. It is obvious that the Secretary of State's decision increases the period of detention in closed conditions which the claimant must serve by nine months and, as a result, it is the character of that decision which falls for assessment by the Court. Although there are no provisions entitling a mandatory lifer who has been recalled to apply for a review, the claimant has received a review. Where not recommended for release by the Board there are no provisions entitling him to apply for a review, but the claimant is to be given a further review by an appropriate body to determine whether or not he should be released. In the light of the decision of the House of Lords in The Queen v Secretary of State for the Home Department Ex Parte Anderson [2002] 3 WLR 1800, it can be assumed that if his release is recommended the Secretary of State will accept the recommendation of the Board. Thus, in the light of the most recent developments in the law, the issue raised by this case is whether the Secretary of State has the power or capacity to delay such release as a Board may, at a future date, recommend by setting the period of time between reviews.
11. The Secretary of State's response to this question was in two parts. It was submitted that his decision in the claimant's case to extend the period of nine months to eighteen months was a matter of judgment, which was within his discretion. Secondly that the exercise of judgment as to the timing of reviews was a matter which was, neither according to the Convention nor United Kingdom legislation, a function which had to be taken by the Board or any other Court like body. The decision, being based on the assessment made by the Board was administrative in character taken with a view to the proper working out and termination of the lawful detention of the claimant. Importantly, it was not disputed that the decision and the period for reviews was subject to the requirement of being taken "speedily" in accordance with Article 5(4) of the Convention. In my judgment where the Board has not recommended release it is difficult to see a rational basis for outlawing the judgment of the Secretary of State in determining when he should next be considered for release. Since he controls the prison service and prisoners lawfully detained within it, it seems to me he is a person who must participate in the process. That said, no factual basis for so concluding was at first available in this case apart from the legislation imposing duties and functions on the Home Secretary, which would have provided a basis for a general range of inferences to be drawn. In fairness the original grounds of challenge have altered.
12. After the Acknowledgment of Service and shortly before the hearing the Secretary of State served witness statement of Mr James Watts, who is employed in Her Majesty's Prison Service Lifer Unit as a member of the policy and planning team. His statement accepts that since the decision in Stafford v United Kingdom the timing of reviews for mandatory lifers falls to be determined in accordance with the principals set out in Oldham v United Kingdom (2000) 31 EHRR 813 and that the period of two years between reviews by the Board has to be considered as a maximum period and not a standard period. He states that the decision in the claimant's case was made in accordance with the Oldham principles. In an important respect his statement presents a factual basis for the contention that the Secretary of State is in a better position to determine the timing of reviews than the Board. The question of timing depends upon the decision maker having a detailed knowledge as to the current functioning of the prison estate, together with knowledge and timing of coursework and other offence risk related work available and likely to be needed within the prison estate at any particular time. According to the evidence and submissions to the court these matters are almost exclusively, so far as the detail is concerned, within the knowledge of the Lifer Unit in the Home Office and outside the knowledge of the Board.
13. Mr Watts' statement contains reasons for the decision of the Secretary of State to recommend two years in open conditions which are not apparent upon the face of the decision of the 17^th January 2002. Against that, it can be said that it is clear the Secretary of State exercised a judgment having accepted the Board's assessment as to risk. There was scope for him to exercise a judgment which differed from the Board on the material considered by the Board and no other material, namely a judgment as to how the risk identified by the Board could be reduced by and within a further period of detention. Two decision makers having experience of prison conditions and prisoners could reasonably differ as to how long it was necessary to properly test and assess a prisoner. The case for the Secretary of State has not involved the suggestion that the Board has no relevant experience or knowledge as to the period of time in which a prisoner should remain in open conditions before review, but it has distinguished the position of the Secretary of State by reference to the detailed knowledge which he holds and to which he has access.
14. There was some force in the contention that Mr Watts' statement went beyond elaboration of the reasons which had been given at the time of the decision but, in my judgment, insufficient force to lead me to conclude that I should disregard its contents. The matters raised appear to me to be relevant and important. The decision of 17^th January is explicable and rational upon the basis that the Secretary of State's judgment of the time necessary to detain the claimant, having regard to the risk assessment of the Board, supported a different conclusion. It does not appear to have been driven by any particular considerations as to the available offence-related courses, their duration or the establishments to which the claimant could go during open conditions. Indeed whilst the statement refers to these matters as being within the knowledge of the Secretary of State, so far as the claimant is concerned the more detailed amplified reasoning appears from paragraph 8 of the statement, where the factors leading to the conclusion that longer time was required, were stated to be that:

"Mr Spence has repeatedly failed to abide by his licence conditions, shown himself to be a risk to the public and vulnerable to repeated alcohol abuse (which had been a factor in his index offence). There was little evidence that he had learned from mistakes made on more than one occasion, and in the circumstances a period of eighteen months in open conditions was felt appropriate in the interests of addressing Mr Spence's difficulties and providing an adequate period of testing before the next review commenced.

Paragraph 9

Accordingly, while the Secretary of State gave great weight to the recommendation of the Parole Board, he felt that it was appropriate in the circumstances of this case to depart from it."

The issue remains, namely, whether he could lawfully make the decision.

15. Counsel for the claimant submitted that in the light of the decision of the House of Lords in Anderson, delay in the timing of release should be regarded as analogous to a sentencing exercise. There are a number of difficulties with this argument. It cannot presently be concluded that the decision to require the claimant to be in open conditions for nine months longer than recommended by the Board has extended his detention. The Board's decision on the next review, whenever it occurs, cannot be foreseen with any sufficient degree of certainty. The assessment of the claimant and testing of him in open conditions is not to be regarded as a routine passage to almost certain release. The decision of the Board cannot be regarded as equivalent to a deferred decision to release (see Mental Health Act 1983). The reasons given by the Board do not reflect any expectation as to the result. A longer period in open conditions, as suggested by the Secretary of State, could result in release, whereas the earlier review could not, and in that event, would be likely to lead to longer detention.
16. Further, I consider the argument that a decision on timing must be treated as a decision to release because it impacts on release, to be fallacious. It could be said that decisions in connection with rehabilitation programmes impact on a lifer's release date. An argument that reclassification of a discretionary lifer's security category attracted the protection of Article 5(4) of the Convention was rejected by the Divisional Court in Burgess v SSHD (Transcript 3.11.200) The impact was not doubted but was insufficient to change the character of the decision from being a decision on classification into a decision which Article 5(4) requires to be under judicial control. Burgess was approved in the Court of Appeal in Williams v SSHD (Citation No 2002 EDWCA civ 498. The case of Ashingdane v United Kingdom (1985) 7 EHRR 528 where a mental patient suffered significant detention as a result of an inability to transfer him from Broadmoor to a less rigorous detention environment, is against the proposition that the reach of Article 5(4) extends to such a comprehensive control of the administration governing detained persons that a decision which involves the administration of prisons should be taken out of the hands of the authority having overall responsibility for prisons.
17. In my judgement the claimant's fundamental rights are sufficiently protected by the requirement to be derived from Article 5(4), that the lawfulness of his detention must be reviewed at reasonable interevals (see Lord Phillips MR (MacNeil v HM Prison Discretionary Lifer (CA Transcript 21st March 2001). There is no basis in domestic law for the conclusion that the Board must set the timing of reviews. There is no basis for concluding that the decision to require the claimant to be exposed to open conditions, for eighteen months is, in all the circumstances of his case, an infringement of the requirement that his reviews be at reasonable intervals.

This claim for judicial review therefore fails and is dismissed.

- - - - - - - - - - - - -

MR JUSTICE NEWMAN: For the reasons which appear in the judgment which is now handed down, this application for judicial review is dismissed. Are there any applications?

MR KOVATS: My Lord, the Secretary of State applies for his costs.

MR LENNON: I cannot resist that. My Lord, I should apologise for keeping the court waiting. I was told that I was on at 10.30.

MR JUSTICE NEWMAN: That is all right.

MR LENNON: The only application I have, my Lord, is an application for permission to appeal, on three grounds that were put forward when the matter was argued. Firstly, the wrong policy was applied on the consideration to the particular facts. Secondly, the breach of article 5(4), that was a ground that was subsequently expanded, and irrationality.

My Lord, I seek to appeal the first two points only. My Lord, just referring to the test that had to be applied for your permission, there was no authority on this particular narrow point until this judgment. This is now the authority in this particular area. The authorities that were mentioned in the judgment, this impacting on the (inaudible) protection related to categorisation. One can see the obvious analogies, although, in my respectful submission, there are differences, and I say that they can be distinguished.

The second ground, the some other compelling reason, is simply this: this is now the only authority on this point. I know that there is at least one other case queued up in the list office awaiting judgment on Spence before a permission decision is made.

MR JUSTICE NEWMAN: Sorry, another Spence case?

MR LENNON: Another case regarding another prisoner on exactly the same point.

MR JUSTICE NEWMAN: I see. You mean somebody who had been released, and had been recalled.

MR LENNON: No. I just know that in that case the Secretary of State did not accept the recommendation of the parole board regarding the timing of release.

MR JUSTICE NEWMAN: The timing of release?

MR LENNON: Sorry, the timing of his review. I think that case is going to be argued on slightly different grounds, but nonetheless it will impact on that case, clearly, this judgment.

Finally, my Lord, this case will have a significant impact on a number of prisoners. In post Stafford and Anderson the Secretary of State has to (inaudible). In my respectful submission, this case ought to be at least considered by the Court of Appeal.

MR JUSTICE NEWMAN: Thank you. Mr Kovats, would you like to say anything else?

MR KOVATS: My Lord, on the first point, the application for the wrong policy, in my submission this turns on the facts of a particular case and has no realistic prospect that the Court of Appeal will disagree with your Lordship. On the second point, the article 5(4) point, in my submission your Lordship's careful judgment is in accordance with the plain wording of the Convention, and advised what are established principles of the Strasbourg jurisprudence, again with the result that there is no reasonable prospect that the Court of Appeal will reach the same conclusion. So, for those reasons the Secretary of State says that this is not an appropriate case for appeal.

MR JUSTICE NEWMAN: Thank you. I do not regard the first suggested ground for appeal, namely the challenge to the policy, to be one which has any prospect of success. So far as the second point, namely the application of article 5(4), is concerned, I am of the view that the matter, although not subject to any other decision directly in point, is dictated by the authorities referred to in the judgment, and it seems to me that if the matter is to be heard by the Court of Appeal, it is for the Court of Appeal to determine that it is worthy of consideration, so permission is refused.

MR LENNON: May I ask for a detailed assessment of costs?

MR JUSTICE NEWMAN: The order for costs you ask for, Mr Kovats, is the usual order: namely, not to be enforced without the leave of the court? Is there any particular form --

MR KOVATS: It is just an order that the claimant pays the defendant's costs. Then the ascertainment of what, if any, costs there are is dealt with at the next stage before the costs officer.

MR JUSTICE NEWMAN: All right. Thank you both very much.